Doctor Sues Patients Over Bad Yelp Reviews

from the that's-not-going-to-help dept

We've seen all sorts of business owners get upset about Yelp, but it seems to be ratcheting up a notch. For example, take Denver chef, Scott Parker, who lashed out at Yelp reviewers in a recent interview (sent in by visual77). After being asked what he'd like to see less of, he stated:

Amateur instant online restaurant critics -- specifically those who write reviews for a website that rhymes with "kelp." Think about it: They review a McDonald's and then turn around and review Mizuna. I just imagine bored, jobless layabouts with not many friends who are convinced that they're going to have a bad time before they even step through the door of a joint. The kicker is, you can't respond to these inbreds and try to educate, or at least explain, why some things happen the way they happen. Have a little fun, for chrissakes. Loosen up when you go out, and let me be the stress ball in the kitchen busting my ass for twelve-plus hours trying to make you the best food I can. Fuck you!

Now, I was going to use this as a story to highlight how bitching about your critics could seriously backfire, but before I could finish that post folks started sending over the even more extreme story of a doctor in Chicago suing three patients after they wrote negative reviews. Dr. Jay Pensler apparently felt that these comments were defamatory, though the article seems to suggest that the people who complained appear to have somewhat legitimate gripes. Pensler is a plastic surgeon, and one woman apparently posted a picture showing uneven breasts with nipples that point in different directions -- something I could see leading to a negative review.

Of course, this isn't really a first either. A few months back we posted about another plastic surgeon who sued her patients for bad reviews on Yelp. Either way, it's difficult to see how that's going to be good for business. Would you go to a doctor who sued online commenters? It seems like these people just aren't going to be willing to take much criticism if they do a bad job... Of course, the lawsuits have resulted in a number of people deleting their criticisms of Dr. Pensler, which is probably the point of his lawsuits. Hopefully a bit more attention on the lawsuits themselves will counteract this.

What's equally troubling, however, is that the court reviewing this case seems to be ignoring the basic First Amendment questions and denied requests to quash the subpoenas in question. It seems like the complaining patients have a pretty strong First Amendment claim to support their anonymity -- a claim that many other US courts have supported. It's a bit worrisome that this court seems to be ignoring that First Amendment right.

Re: Huh?

Yelp and free speach

Word of mouth has always been considered the best kind
of advertising. If we know of a product or service that
is above average we spread the word. Likewise if we are
unhappy about a product or service we are sure to tell the
family, friends and coworkers.

Re: Yelp and free speach

I previously worked for a company which uses a large number of agents. We (finally) were able to let them create business Facebook pages for their agencies. One of the things we harped on was proper response to negative criticism.

While the whole "don't sue a negative commenter" wasn't exactly expressed, "don't delete negative comments" was. We told them that taking the opportunity to publicly respond politely and professionally to the situation gives them the opportunity to turn that negative comment into positive advertising.

If you leave me a negative comment, and I reply "Mr. Customer, I'm sorry you had a bad experience. Please come by the office some time so we can discuss how to make this right for you"... how good does that look? If you came across that kind of exchange you might very well think "wow, this customer is just a disgruntled blaster and the owner is trying to fix it".

However, if you delete comments or SUE them, you look like someone with something to hide.

Re: Re: Yelp and free speach

Newegg.com is great about negative comments like that. There is responses from the manufacturer's in the reviews that are almost that exact PR line : "It sounds as if you product was defective, please contact us at xxx-xxx-xxxx to setup a RMA for a new replacement." It really does reflect well on the companies and it's a much better reinforcement then suing someone because they didn't like your product.

Re: Yelp and free speach

'Isn't Yelp just a bigger and louder "word of mouth"?

When did word of mouth become illegal?'

It's not illegal, but now it's both widespread and persistent - which means that's it's not "word of mouth" any more, it's publishing. Traditional "word of mouth" is ephemeral - it fades, and it's localized. If someone screwed up badly, they could move, and leave it behind them. With Yelp, and other services, and the self-publishing options available to everyone, it's harder for someone to leave their mistakes and incompetence behind.

This can be very bad for them - but good for the rest of us.

Of course, the surgeon can easily avoid this by doing good work. And setting expectations low enough that he can exceed them. And by charging reasonable rates. You know - basic customer service best practices. :-)

Okay, which directions?

As an amateur figure artist and otherwise interested and highly motivated student of the subject, I would like to point out that they're not supposed to point the same direction.

Any good art instruction on basic human proportions will tell you that somewhere in the range of a 60-90 degree angle is natural and preferable. Now if one pointed up and the other down, well, yeah that'd be less than quality work.

Re: Okay, which directions?

As an amatuer motor-boater, I vehemently disagree. The tips of meat rockets should be uniformly pointed straight forward. I want to make sure a woman's nipples are looking me straight in the eye when I'm talking to them.

Re: Re: Okay, which directions?

'Eyes front' is really only possible when mechanical means are employed (hands, brassiere, perhaps suspenders?), so yes, motorboating would make that happen, but, unless it's a truly natural development, which would be a bit uncommon, they shall likely point a bit east and west when left to their own devices, even when surgically altered.

North and south...that might be a problem if you paid for bigger and better (or smaller and less problem causing).

Re: Re: Okay, which directions?

Re: Re: Okay, which directions?

As an amateur master-bater, I vehemently disagree with your use of the word "meat-rocket". This only refers to the body part which I currently hold in my hand, while debating the value of mis-angled nips on a set of angel cakes.

Re: Okay, which directions?

My thoughts exactly - I thought tits were supposed to point away from each other. So artists have actually measured the approximate angle? Wow... Have to say my wifes jizz catchers are perfectly symmetrical but that is unusual in my experience. One is usually bigger than the other. Or hairier.

Comeback

Hey, the worthless, lay-a-bouts obviously got the best of you. Dude, people that read these Yelp reviews do so with a big grain-of-salt. A quality restaurant does not depend on idiot reviews. It depends on word of mouth. Any thinking person will try a restaurant for themselves and make their own decision. And if they really think about it they will try it more than once to get a real feel for the place and not go on one meal. Hell, anyone can have a "bad" meal. Chin up, dude and stop listening to the nitwits!

Subject

I say:

If a "doctor" effs you up, eff them up back.

There is slander/defamation, but it's ONLY illegal if it is not true. If you are truly effed up and can prove it, no one stands a chance against you.

If there's one thing that lawsuits can do, even if your opponent files completely in the wrong is--they can be used to make a person (with a legitimate gripe or not) to become frightened, intimidated, eventually back down resulting in their opponent winning by default and therefore setting a precedence for all other cases in the future which benefits the party that wrongly filed the lawsuit. This has worked very well with the extortion schemes devised by legal offices "acting" on behalf of the RIAA/MPAA. These doctors are hoping to silence their critics and even those who they have effed up.

If you have a gripe and if you decide to post comments publicly; STATE only the facts and make sure that you can provide PROOF to back up your claims. If you get a legal threat, DO NOT back down. Post your proof publicly and also post publicly that you intend to keep everything completely public. Let them sue you and take you to court because the courts will side with you if you have proof. Get the media involved, post a Facebook dedicated-information page, post YouTube videos and create as much publicity as you can. When you win, sue back for all the money that you can get.

Destroy someone that has ruined you, and most definitely destroy the same person that is trying to destroy you.

Libel & free speech

Unfortunately, it's long been the case that libel has long been considered an exception to first amendment free speech protection. I think this is a bad idea because in virtually all (if not completely all) cases libel suits are used to squash legitimate though unwanted critique rather than actually address false accusations. In this case, it would come down to whether the criticisms of the doctor are legit. Nonetheless, even if there's a legal basis, it's still incredibly stupid. The doctor takes a big risk of alienating potential customers as well as exposing his shoddy work in a public lawsuit.

I could understand a doctors lawsuit if when he found out who posted it, could prove that she wasn't actually his patient. Say a competitor or someone else had posted a bogus review, that would warrant a lawsuit.

If she goes ahead and shows up at a trial and her boobs are pointing in different directions, well, that seems to be a pretty big problem for the doc.

As long as you don't do something stupid in your review, why should anyone fear a lawsuit? Isn't there some kind of popular saying that takes care of people that try to intimidate you for exercising your rights? I think it goes something like "So sue me."

I Am Confused by Techdirt

This blog often complains about people who sue Web sites while ignoring the Section 230 Safe Harbor laws. This blog always points out that the issue is with the person who made the post, not the site that hosts the post.

So now here are plaintiffs handling it properly, suing the people who actually made the post, and this blog still complains about it!

The First Amendment does not trump libel and defamation laws. If the post on Yelp is libelous then the person who made the post can be sued for damages.

Whether the lawsuit is good or bad for business, the person who posted the review better be able to back up the assertions made in their review or else they have in fact broken the law and the doctor has every right to sue.

Re: I Am Confused by Techdirt

This blog often complains about people who sue Web sites while ignoring the Section 230 Safe Harbor laws. This blog always points out that the issue is with the person who made the post, not the site that hosts the post.

Indeed. But that does not mean that we ignore First Amendment rights.

So now here are plaintiffs handling it properly, suing the people who actually made the post, and this blog still complains about it!

So you think that because they sued the person we should ignore the chilling nature of suing critics?

The First Amendment does not trump libel and defamation laws. If the post on Yelp is libelous then the person who made the post can be sued for damages.

Indeed. But are these comments libelous? That's not clear (the photos certainly suggest otherwise). The First Amendment protects anonymous speech, and there are indications that this is an attempt to stifle truthful or opinionated speech through legal threats. You don't see that as a problem?

Re: I Am Confused by Techdirt

Of course I am troubled when the courts are used to stifle truthful speech.

But it has to be very frustrating for a business when reviews are posted that are not true. The business has no recourse, and the poster hides behind anonymity to elude the consequences of committing the bad act.

This blog refers to anonymous posters as "Anonymous Coward" for a reason.

These anonymous posts can cause very real economic damage to the business. How do you fix that?

Re: Re: I Am Confused by Techdirt

But it has to be very frustrating for a business when reviews are posted that are not true. The business has no recourse, and the poster hides behind anonymity to elude the consequences of committing the bad act.

The business can respond. That seems like recourse. And if the business has lots of legitimate happy customers, word of mouth will spread

Re: Re: Re: I Am Confused by Techdirt

Okay well then help me out with this one. I left a Dr.'s office on my own. Went through my file the day I left because my Dr. had recently hired his "angry wife" as the office manager". She was mean & rude. We got a copy of my file the day I left. 2 weeks later I go to interview a potential new Dr. and he tells me that he's unsure they can accept me since my last office FIRED me for violent behavior and stealing meds-he had a 3 page letter from this dr.'s wife at the front of my file. Long story short, I filed with the state & OCR-HHS & they said the Dr. did nothing wrong. So I wrote on a rating review site, "not a good Dr., stay far away from this place." Where his wife in turn posted 6 times with my first & last name for all the world to see my private medical information... & they then went on to sue me for 100,000.00$. Besides the fact it was impossible to find to find a Dr. after his wife placed that note in my file & I was 6 weeks out of having a hamstring tenotomy that required 4-6 months of P.T. which I was unable to receive, I have nerve damage & an unbelievable jagged 15 in scar, (among 4 other surgeries I also never needed) & the tenotomy ...it should've been done arthroscopically.

Re: Re: I Am Confused by Techdirt

How can a business go about proving that the review is false? Some websites don't even ask the reviewer to sign up, they can post their review with just an email address. The email address is only known to the website, not the business. Would the business have to sue the website to get the reviewers email address? And furthermore, anyone can post a review and put ANY email address. It seems it would be very difficult to find out WHO posted the review. Any thoughts?

Interesting Juxtaposition

I find it interesting that a few posts above this one is Yellow Pages suing over freedom of speech because people are opting out of receiving their ADVERTISING. And here we have people who have screwed up either food or surgery trying to squash free speech because it's not favorable to them.

As I understand it, libel has to have provable damages. If this doctor screwed up the surgery she should be glad she's only posting pictures and not suing HER for malpractice. I'd point out people have sued and won, with less grounds than botched surgery. (Thinking coffee here)

There must be something in the air, because as of late, defamation lawsuits are popping up from sea to shining sea-online and off. Former Major League superstar, Roger Clemens, is embroiled in an upcoming defamation lawsuit, while online travel heavyweight, TripAdvisor.com, is staring down the barrel of a group action being pursued by hundreds of hotel vendors; and in Duluth, Minnesota, a doctor is suing his patient's son for-yep, you guessed it-spreading lies online.

In April of last year, World War II Veteran, Kenneth Laurion, was treated for a hemorrhagic stroke at St. Luke's Hospital by Dr. David McKee, a neurologist. During Mr. Laurion's time in the hospital, his family alleged that Dr. McKee's behavior was unacceptable. The Laurions insist that Dr. McKee's bedside manner was beyond reproach. The good doc, they claimed, lacked common sensitivity-in both actions and comments-towards patient Kenneth and the rest of the Laurion clan. Like many would today, Dennis Laurion, Kenneth's son, took to the Internet and made his displeasure with McKee known.

In June, Dr. McKee filed a defamation suit against Dennis. McKee's attorney, Marshall Tanick, called Laurion's alleged defamatory remarks ,"weapons of mass destruction" (oh yes, he went there). Tanick continued by arguing, "The totality of statements made on these websites would be injurious to the reputation and standing of a doctor in the eyes of others who might see it, including patients or prospective patients, colleagues, peers, referral sources, and others."

On February 8th, accompanied by his wife and father, Dennis Laurion found himself in the Sixth Judicial District Court. He explained how when he went to the Intensive care unit to check on his father, he overheard Dr. McKee quip, "I had to find out whether you had been transferred or died."

In a deposition, McKee acknowledged that he had made the statement, but insists it was in good humor and intended to alleviate tension.

Dr. McKee is seeking excess of $50,000. The Laurions and their lawyer, John Kelly, are claiming that any statements made about the doctor were true, thereby rendering Dennis Laurion immune from any liability. In the eyes of Kelly, Laurion's comments were opinions that cannot be demonstrated to be false in court.

Eric Hylden, the presiding judge, announced that the suit was a "very interesting type of case." Later, Hylden implied that, Constitutionally, Dennis certainly has a right to an opinion but went on to question whether or not there is some limitation to what citizens can say in an online public forum.

Doctors and plumbers sue over online ratings

A judge threw out a lawsuit today filed by a Duluth physician who said he was defamed by a man who publicly criticized his bedside manner.

Dr. David McKee, a neurologist with Northland Neurology and Myology, alleged that Dennis Laurion of Duluth defamed him and interfered with his business by making false statements to the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.

Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s hospital from April 17-21 last year. Kenneth Laurion recovered from his condition.

Dennis Laurion claimed that any statements he made about the doctor were true and that he was immune from any liability to the plaintiff.

In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion’s “statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”

Hylden addressed the fact that Laurion posted some of his criticisms of McKee on websites. “In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”
Hylden concluded his order by stating that there wasn’t enough objective information provided to justify asking a jury to decide the matter.

Laurion was relieved by the court’s ruling.

“My parents, who are now 86, my wife and I have found this process very stressful for the past year, since my father’s stroke. There was never just one defendant,” he said. “We’re grateful that Judge Hylden found no need for a trial.”

In his suit, McKee alleged that Laurion made false statements including that McKee “seemed upset” that Kenneth Laurion had been transferred from the Intensive Care Unit to a ward room; that McKee told the Laurion family that he had to “spend time finding out if [the patient] had been transferred or died;” that McKee told the Laurions that 44 percent of hemorrhagic stroke victims die within 30 days; that McKee told the patient that he didn’t need therapy; that McKee said it didn’t matter that the patient’s gown was hanging from his neck with his backside exposed; that McKee blamed the patient for the loss of his time; and that McKee didn’t treat his patient with dignity.

According to the Minnesota Board of Medical Practice website, McKee has had no disciplinary actions brought against him.

“I’m very disappointed by this court’s decision because as far as I can see the only avenue that I can see that I had to respond to this overwhelming attack was through the courts, and for the time being it appears that avenue has been closed without me ever getting a chance to present my evidence,” McKee said.

McKee said he hadn’t had a chance to confer with Marshall Tanick, his Minneapolis attorney. He said he will do so before he decides whether to appeal the decision. Tanick told the News Tribune he had not yet seen the decision and couldn’t comment on it.

Have you seen the pictures on Yelp's listing on Yelp? Just saw a few, pictures of employees you can tell they were hand picked, I don't think normal good people would want to work for Yelp! There is one picture of this "Yelps Rules" wrote in the sands! This alone shows the mind set of these inhuman people! They believe they have they are ruling our lives! They are aware of destroying lives and they are proud of it! Hoe creepy is that!

People in over seas pull down dictators by putting their lives on the line, why can't we have an organized demonstration to bring light and attention to this?

Doctor sues detractor

[ MINNEAPOLIS -- A man's online post calling a doctor "a real tool" is protected speech, the Minnesota Supreme Court ruled Wednesday. The state's highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient's son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor "a real tool," slang for stupid or foolish. ]

defamation lawsuits

David McKee MD precedent cited by U. S. Court of Appeals

Minnesota defamation case, David McKee MD v Dennis Laurion, cited as precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the Eastern District of North Carolina.

In deciding an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington, MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP (12-1287); The United States Court of Appeals for the Fourth Circuit cited David McKee MD v. Dennis Laurion.

The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013) .

A defamation claim cannot be based on a true statement. Id. at 730. “True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance, the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.” Id.

David McKee MD lawsuit cited by Twin Cities Business Magazine

Twin Cities Business "The Top Lawsuits Of 2013" by Steve Kaplan, December 20, 2013

Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

Re: David McKee MD lawsuit cited by Twin Cities Business Magazine

In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying about David McKee MD v. Dennis Laurion: "The thing that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries."

From the American Health Lawyers Association: IN THIS CASE, THE COURT FOUND THE SIX ALLEGEDLY DEFAMATORY STATEMENTS WERE NOT ACTIONABLE BECAUSE THE “SUBSTANCE, THE GIST, THE STING” OF PLAINTIFF’S VERSION FOR EACH OF THE STATEMENTS AS PROVIDED IN DEPOSITION AND DEFENDANT’S VERSION ESSENTIALLY CARRIED THE SAME MEANING, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: THE MINNESOTA HIGH COURT SAID, FOR INSTANCE, THAT DR. MCKEE’S VERSION OF HIS COMMENT ABOUT THE INTENSIVE CARE UNIT WAS SUBSTANTIALLY SIMILAR TO MR. LAURION’S. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” THE COURT SAID THE DIFFERENCES BETWEEN THE TWO VERSIONS OF THE STATEMENTS ABOUT DEATH OR TRANSFER BY BOTH PLAINTIFF AND DEFENDANT WERE SO MINOR THAT THERE WAS NO FALSITY IN THE WEBSITE POSTINGS. In other words, the court indicated that the allegation about the statement was true.

In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from "an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it's “an endorsement that statements of opinion are protected under the First Amendment.”

According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”

Online Libel is not Free Speech

The framers of the constitution never intended for free speech to become a vehicle for libel or slander. The internet is not like a newspaper where a story is printed and then goes away. While you have business hours, the internet is 24x7, forever.. it is the new permanent record. Using outdated laws intended for things like newspapers and other paper publications never considered the ageless and persistent nature of an internet posting.. who wants to live a life where every misstep is NEVER FORGOTTEN. Often times the internet allows derogatory information to persist long before legal statutes. You could default on a credit card, and after 7 years, the report of that goes away.. A malcontent patient can post a bad review.. and it will still be there.. 20 years from now.The notion that any attempt to quash statements on the internet will have a "chilling effect" is not a valid argument- it simply means that the internet cannot become "the wild west" of "trash who you want, lie when you want" and do so under protection of anonymity. May of these review sites YELP, RATEMD, and others have no consistent avenue for doctors who have had their names tarnished to challenge- so they are left to use the court system. Now, the attitude is to say, "well.. we wont respect the court, we'll be our own law and use social media to get our way!" Does this sound like a good idea to you? Law need so catch up and recognize the persistent and ubiquitous nature of the internet at large.. it's not "Tuesdays edition of the Time".. its there every day forever. How would you feel to have made a mistake at say 16 and have that mistake very public, out in the open, all the time as though it happened yesterday? Do we want a world where technology means "no redemption"?

It’s throwing good money after bad.

The following is taken from a longer article, “Insult And Injury: How Doctors Are Losing The War Against Trolls,” written by Jake Rossen, BuzzFeed contributor, April 4, 2014.

“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

Both McKee and Dennis Laurion agree on substance, if not necessarily intent: The doctor entered the room and expressed that he was initially puzzled the elder Laurion had been moved from intensive care. Usually, McKee said, there are only two ways out of the ICU, and he offered this was the better option. McKee intended for the comment to be lighthearted; the Laurions found it crass.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

“I just wanted someone with ‘M.D.’ after their name to say, ‘This doesn’t reflect well on you.’” Laurion says. “I wanted someone to say he should tone it down and be more personable.” The dozen letters, he says, were to account for any overlapping bureaucracy — though he admits even his own lawyer questioned the avalanche of paperwork.

For good measure, he also posted reviews on rating sites including Vitals.com and Insiderpages.com. In addition to critiquing his bedside manner, Laurion quoted a nurse he ran into who once knew McKee. The doctor, she allegedly said, was “a real tool.”

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

“I got a cold call from an online reputation site,” he recalls. “They said, ‘Boy, you’re all over the internet. You want some help?’” One of the physician’s three daughters was handed a printout of an online post in school and ridiculed. She came home crying.

“The internet creates a scenario where people with most emotional energy behind their opinions will become the most visible,” he says. “But the 7,000 patients I’ve seen since practicing in Duluth that have little or no feelings are invisible.” Convinced Laurion was behind the multitude of postings (though they coincided with the Reddit discussion, a large number allegedly came from Duluth, where Laurion resided), McKee renewed his litigation and his lawyer hired a private investigator to find the nurse Laurion claimed to have run into. She was never located.

“When he sued me, he opened Pandora’s box,” says Laurion, who denies submitting any posts beyond the initial two. “Whether all of it was proportionate, I don’t know. My intent all along was simply to have someone he respected say to him, ‘When a patient complains, it behooves us to conduct ourselves more circumspectly.’ That was my goal.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

Nearly $70,000 in legal fees later, McKee would agree. He argued his case in front of the Minnesota Supreme Court, which ultimately concluded Laurion’s comments were opinions. And because the court could not rule on the meaning of “tool,” it became impossible to determine whether that was libelous.

“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” read the ruling, which was excruciating in its examination of a schoolyard insult and found in favor of Laurion.

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

Throwing good money after bad

BUZZFEED: “Insult And Injury: How Doctors Are Losing The War Against Trolls”

As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text - at least as it pertains to me - but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

What it’s like for a patient or family member to be caught up in a case like this was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001, and repeated in http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml . It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,” said Marshall Tanick, a First Amendment expert at Mansfield & Tanick in Minneapolis. “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements,” he said … “yet very few (cases) go all the way to trial and verdict,” Tanick said.

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income - the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what - if any - impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit - for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

People should be allowed to speak their minds. For whatever reason I have noticed that a lot of doctors and lawyers feel like since they're doctors and lawyers they can be unscathed. I think if you do a bad job or if you're rude/ give bad service you deserve to get a bad review. If you don't want a bad review do a good job. Simple as that. For all we know they go and tell other doctors not to take us a patients. We don't know.